[S. 153(B) IPC] Praying For Departed Militant Does Not Amount To Instigating Community To Protest: Himachal Pradesh High Court

Quashing an FIR against a student for offences under Sections 153(B) of Indian Penal Code a bench of Justice Sandeep Sharma observed,

“Had petitioner after death of militant named hereinabove instigated people to lodge protest against the Administration and other Police authorities, or had he made appeal to others to join the movement, he could be said to have been committed offence under Section 153(B) of IPC…. he simply made a prayer for departed soul with further comment that he misses Shakoor Bhai”.

Background of the Case:

The case originated from a Facebook post by the petitioner, Tahseen Gul, a student of Chitkara University who prayed for the peace of a departed militant's soul and expressed personal sentiments of missing him. This post led to the filing of an FIR under Section 153(B) IPC by the police, asserting that the petitioner's comments glorified the militant's actions and propagated enmity and hatred among different societal groups.

Assailing the FIR Counsel Ms. Prabha, representing Tahseen Gul, contended that the Facebook post merely expressed personal grief and prayer for the deceased, without any intent to glorify terrorism or incite unrest.

She argued that the post did not hurt any religious sentiments or create enmity between different sections of society. Hence, the initiation of proceedings under Section 153(B) IPC was unwarranted.

Mr. Rajan Kahol, Additional Advocate General, argued that the petitioner's Facebook post glorified the militant and could potentially create unrest within society.

He maintained that offering prayers for a terrorist and expressing personal loss amounted to supporting militancy, justifying the proceedings under Section 153(B) IPC.

Court's Observations:

Upon meticulously analysing the content of the Facebook post and the applicable legal principles the Court noted that the post, in its entirety, only expressed a prayer for the departed soul without calling for any protests or unrest. The petitioner's mention of missing “Shakoor Bhai” did not translate to glorification of terrorist activities or instigating enmity.

The Court clarified that Section 153(B) IPC requires explicit words or actions that propagate feelings of enmity or hatred among different societal sections as petitioner's post lacked such content and intent.

“No doubt, by making comment through Facebook account by the petitioner, petitioner herein can be said to have made an attempt to glorify the acts and deeds of militant, but such attempt or effort, if any, cannot be said to be a crime/offence, as is covered under Section 153(B) of IPC”, the bench remarked.

Elucidating as to how Culpability can be fastened to a speaker who actively incites the audience to cause public disorder Justice Sharma explained,

“Active incitement can be gauged by the content of the speech, the context and surrounding circumstances, and the intent of the speaker. In case the speaker does not actively incite the dissent into public disorder, and is merely pointing out why a certain person or group is behaving in a particular manner, what are their demands and their point of view, or when the speaker interviews such person or group, it would be a passive delivery of facts and opinions, which may not amount to promotion”.

Referencing the Supreme Court's judgment in Amish Devgan vs. Union of India and Others (2021) 1 SCC 1, Justice Sharma highlighted that not all dissent or criticism constitutes a penal offense. The court emphasized that speech should target a group or individual relating to a group to be considered hate speech, which was not evident in this case.

Commenting on the powers of the court to quash FIR after framing of charge, the court took recourse to a judgment of Apex Court in case tilted Anand Kumar Mohatta and Anr. v. State (Government of NCT of Delhi) Departmetn of Home and Anr, AIR 2019 SC 210, wherein it was held that abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation and as such, the abuse of law or miscarriage of justice can be rectified by the court while exercising power under Section 482 Cr.PC.

In alignment with these observations the bench allowed the petition and the FIR alongwith any consequent proceedings were quashed.

Case Title: Tahseen Gul Vs State of Himachal Pradesh.

Citation: 2024 LiveLaw (HP) 29

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